With one stroke of a pen, President Peter Mutharika may have set up an epic battle involving three branches of government—the Executive, Judiciary and Legislature—that could send Malawi into a constitutional tailspin.
Yesterday, Mutharika sent his press secretary Mgeme Kalilani to deliver two major messages: that he has withheld assent to four election-related bills that Parliament sent for his nod last month; and that he would not fire Malawi Electoral Commission (MEC) commissioners who the Constitutional Court (ConCourt), presiding over the presidential election dispute, found to be incompetent and ordered Parliament’s Public Appointments Committee (PAC) to further assess their fitness. The committee recommended that they be sacked.
Reading the statement carrying decisions that one legal scholar warns could amount to constitutional breach by Mutharika, Kalilani said the President believes the four bills are unconstitutional and amount to a power grab by the Legislature in a democratic system that thrives on separation of authority.
But throwing back the bills to the House casts a shadow on the fresh presidential elections that the National Assembly proposed in one of the bills should be held on May 19 this year.
The House was complying with the ConCourt ruling that ordered the new poll within 150 days from February 3 2020 when it nullified the May 2019 presidential results that handed Mutharika a now quashed second term.
The President received for his assent the following bills from Speaker Gotani Hara on February 25 2020: Electoral Commission (Amendment) Bill; Electoral Commission (Amendment) (No.2) Bill, Parliamentary and Presidential Elections (Amendment) Bill and Parliamentary and Presidential Elections (Amendment) (No.2) Bill.
Kalilani said on Tuesday Mutharika was convinced a fresh presidential poll that was enabled by the four proposed pieces of legislation would be illegal largely because the bills were in conflict with the Constitution of Malawi, which the President swore to protect.
The President has given five reasons for rejecting the Electoral Commission (Amendment) Bill.
One of the reasons is that the Bill does not meet the tests of constitutionality and lawfulness in accordance with Section 8 of the Constitution as read with Standing Order Number 157 of the National Assembly.
The President also believes that the Bill violates the principle of separation of powers between different branches of government.
Mutharika also has a bone to pick with clause three of the Bill whose effect is to facilitate the firing of the current MEC Chief Elections Officer (CEO).
The President argues that Section 12 of the Electoral Commission Act only empowers MEC commissioners—not Parliament—to sack the CEO.
By proposing that Parliament fires the commission’s CEO instead of commissioners who fall under the Executive Branch, reasons Mutharika, the House is usurping powers of the first arm of the State.
As such, he believes the House’s move to remove the CEO is unlawful and constitutionally unsound as it is incompatible with the specific role of the Legislature under Section 8 of the Constitution.
In his view, even the House’s proposal to deploy the Clerk of Parliament to act as MEC CEO is an attempt to grab the powers of the commissioners and, therefore, the Executive branch.
On the Electoral Commission (Amendment) (No.2) Bill, the President is sending it back to Parliament because he does not agree with the role the Bill is giving to Parliament’s PAC in the recruitment of the MEC chairperson.
The proposed amendment reads in part: “The Chairman of the Commission, the name of the judge nominated in that behalf by Judicial Service Commission, shall be submitted to [PAC] for the committee’s recommendation for appointment by the President. The other members of the commission, the [PAC] shall receive nomination from political parties that are represented in the National Assembly.”
The President argued that bringing in PAC in the process of hiring the MEC chairperson is a waste of resources because it would simply duplicate the role that the Judicial Service Commission already plays.
Mutharika also believes that inserting PAC in the selection process of MEC chairperson is contrary to Section 75 of the Constitution and Section 8 of the supreme law, particularly on separation of powers.
The President is convinced the move is also inconsistent with Standing Order Number 157 of the National Assembly.
On the Parliamentary and Presidential Election (Amendment) Bill 2020, the President thinks that the proposed amendment to Section 23 of the PPEA violates the right to vote under Section 40 (3) and Section 77 of the Constitution by bringing in conditions that limit the right to register as a voter.
The proposed amendment reads in part: “Provided that for the purpose of the fresh election under Section 80 A of the Constitution proof by a person of his eligibility to register as a voter in the fresh election shall only be by presenting in person his National Registration card issued under National Registration Act and 29A the period for registration of voters shall be as specially determined by the commission and published in the Gazette.”
But Mutharika argues that the proposed amendment to Section 23 of PPEA is unreasonable and constitutionally unjustifiable as restriction or limitation to the right to vote under Section 44 of the Malawi Constitution in so far as the same is not general application, but only applies with respect to the ‘fresh election’.
He also thinks the proposed amendment to introduce Section 29A in the PPEA that cuts the period for registration of voters can infringe on the right to vote by preventing people from registering to vote, saying a fresh election is not different from a general election where everyone who reaches 18 during the prescribed registration period is allowed to get into the voters’ roll.
The President also wants the Bill to clearly stipulate the right to seek court intervention and state that the commission should not announce a fresh election until after any or all candidates that would have challenged the results through courts have exhausted all domestic remedies.
On the Presidential Elections (Amendment) (No.2) Bill, the President is of the view that the National Assembly incompetently and unlawfully introduced and passed the legislation.
For example, the President thinks that based on sections 67 and 80 of the Constitution, it is not competent for the Legislature to enact a statutory provision governing the time frame for a general election or a fresh election or a run-off election as it did under clause three of the Bill because that can only be done in the Constitution.
But constitutional law scholar Danwood Chirwa said the main reason the President has given for withholding consent was both “grotesque and incoherent”.
Chirwa—a professor of law at the University of Cape Town—said in a written response that if the bills before who he referred to as the interim President violate the separation of powers and hence the Constitution as he suggests, he has the option of seeking the advisory opinion of the ConCourt.
He said Mutharika was not taking the ConCourt option because he knows that his position is untenable.
“The truth is that the bills try to operationalise the Constitutional court’s decision, which the interim President does not like. By refusing to assent to the bills, the interim President is disobeying that court’s decision and acting in contempt of it, and not upholding the Constitution as he claims,” Chirwa said.
He said the President was committing two further unconstitutional acts—both rooted in a fundamental violation of the separation of powers, which he claims to be relying on.
“By turning himself into an arbiter of the constitutionality of bills and Acts of Parliament he’s usurped the power of Constitutional Court. On the other hand, he’s also stifling the law-making process of the Legislature by advancing dubious and irrational reasons for withholding consent.
“Parliament should reconvene and reject his protestations and resubmit the Bills, at which stage the President will be duty bound to assent to them. If he has a problem with them, he can go to the Constitutional Court to ask for an advisory opinion. But he cannot put a halt on the legislative process by fiat,” he said.
University of Malawi’s Chancellor College law lecturer Sunduzwayo Madise said since the President has given his reasons for the rejection of the Bills, it will be up to Parliament to look at the validity of the reasons and retable the Bills for second consent.
“The situation at hand is in the realm of politics other than law,” he said.
Madise said, somehow, the court order has to be respected and Parliament has a choice to take the matter back to court for more orders in the event that the election fails to take place in the 150 days as ordered by the court.
“The law allows him to reject the bills with reasons. We are in a situation where we can be moving in circles. The three arms of government not working together, which would make Malawians to suffer,” he said.
Madise said Malawi was in a peculiar situation where Mutharika was still exercising full presidential powers despite that the election was nullified, thus ordinarily the President would have had temporary powers.
On his part, private practice lawyer John Gift Mwakhwawa said by rejecting the Bills, Mutharika might be throwing the country into constitutional crisis. “The Legislature made the laws to facilitate what the court ordered. If he rejects it means the court and Parliament are in conflict with the Head of State,” he said.